Several European countries already have offshore wind farms, including Denmark, Ireland, the Netherlands, Sweden, and the United Kingdom. Earlier this year, China completed the installation of its Shanghai Donghai Bridge offshore wind farm project, which has a total installed capacity of 102 MW (enough to power 200,000 Shanghai homes) and is the first large scale offshore wind farm constructed outside Europe. As for the United States, the Department of Interior (DOI) had issued a report last April which noted (in part) that 28 of the contiguous states have a coastal boundary (including the Great Lakes), 78% percent of the electricity demand in the United States is from the coastal states, and offshore wind has the potential to meet a large proportion of that demand. As analyzed by the National Renewable Energy Lab, over 1,000 gigawatts (GW) of wind potential exists off the Atlantic Coast and over 900 GW of wind potential exists off the Pacific Coast. Despite the great potential for offshore wind in the United States, not one offshore wind project has been approved for construction in the United States…until now. On Wednesday, April 28, 2010, Secretary Salazar approved the Cape Wind project to be constructed on the intercontinental shelf off of Massachusetts. The regulatory tide is turning…
Approval of the Cape Wind offshore wind project despite contentious opposition by certain groups provides regulatory support for offshore wind and provides some guidance for several other offshore projects that have been proposed in the last few years. The development of wind projects in the United States, which are (by all accounts) capital-intensive, has been hampered by concerns about the financial markets, the overall economic downturn, regulatory uncertainty as to the future role for renewables in energy policy, and environmental issues. While Congress has yet to pass comprehensive climate and energy legislation, the approval of the Cape Wind project signals that large scale renewable energy development can play a role in economic recovery and in energy independence and that opposition by those who believe offshore wind farms are unsightly will not prevail when other factors align in favor of the development.
The process for the Cape Wind project began in 2001, when Cape Wind Associates, LLC, submitted an application to the United States Army Corps of Engineers (the Corps) for a permit to construct an offshore wind power facility in Nantucket Sound. Public review and opposition followed. According to the DOI, the proposed Cape Wind project is expected to meet 75% of the electricity demand for Cape Cod, Martha’s Vineyard, and Nantucket combined and cut carbon dioxide emissions from traditional power plants by 700,000 tons per year. The Cape Wind facility will occupy a 25-square-mile section of Nantucket Sound and produce enough energy to serve more than 200,000 homes in Massachusetts. The maximum energy output of Cape Wind is 468 MW, with an average anticipated output of 182 MW. The project includes a 66.5-mile buried submarine transmission cable system, an electric service platform, and two 115-kV lines connecting to the mainland power grid.
Success begets success. And so, even though the United States is not the first country to approve the construction of an offshore wind farm, this is very encouraging for wind energy developers, the construction industry, and financial investors who were waiting to see whether the 9-year old Cape Wind proposal would pass regulatory - and especially environmental - muster and then survive the aesthetic opposition raised by some.

Movie production or distribution is not something I get to do every day. Or even at all. But this opportunity is proving hard to pass up. What happens when a windmill fails? Let’s watch what happened in Denmark in February 2008. http://www.windaction.org/videos/14294. Can you get insurance for this? And what about other problems that wind farm owners and operators might face?
This is not of obscure interest. Last night Interior Secretary Salazar made a decision on whether the Cape Wind wind farm project in Nantucket Sound can move forward: he approved it. Proponents assert this is the harbinger of a $270 billion industry and can be the source of 75% of the energy needed by Cape Cod, Nantucket and Martha’s Vineyard. Critics point to desecration of Native American sites and rituals, as well as the destruction of unique and beautiful views. (It seems hard to believe that nine years have passed since the project was announced. But that is due process. In the end the Secretary’s decision coincided with the views of Mass Audubon, the NRDC, the Conservation Law Foundation, the governors of Maryland, New Jersey, Massachusetts, Rhode Island, Delaware and New York, national policy and national opinion polls.).
But let’s return to our exploding wind turbine. It goes without saying that there must be insurance for these projects. The key is in identifying the risks and recognizing what can be insured, what requires indemnification or hold harmless agreements, and what risks must be minimized because they cannot be eliminated or transferred. This is no more than the usual risk management paradigm.
A failed wind turbine is an obvious risk and we can be confident that our Danish wind entrepreneurs procured property insurance. The description accompanying the video identifies high winds during a storm and a failed braking mechanism as the cause of the calamity. Two technicians barely managed to escape. Debris was hurled 500 meters. While the cause of the loss might seem obvious (high winds and covered), one can be sure the applicable policy was reviewed closely to ensure a "wear and tear" exclusion was not applicable or an anti-concurrent causation clause did not apply. Less certain is the scope of business interruption insurance available. While certainly the output of one turbine is now absent, is that enough to trigger business interruption coverage, which often requires a “necessary interruption” of one’s business? Perhaps more significantly, who bears the risk if the wind does not blow, or the design is not as efficient or productive as anticipated. Similarly, what are the implications for promises of startup by a certain date or contractual obligations to deliver a certain quantity of power or that certain tax credits will be available.
Another side of the operation is liability exposure. Are individuals or property likely to be injured by a failure? What is the kind of injury? Again, it is highly unlikely the Danes did not obtain coverage for an individual or vehicle injured or damaged by the failing structure (whether it was the turbine, the blades or the mast). Other issues are not so obvious. In England claims have been asserted that infrasonic waves are dangerous. Low frequency noise complaints or “strobe effects” are claimed to cause injury. We may expect assertions of loss of property values when windmills disturb high-priced views. Will a general liability policy pick up these claims?
The decision on Cape Wind is laudable and necessary for wind energy to become a robust contributor to the nation’s energy mix. Coverage needs to keep up.

McCARTER & ENGLISH CLIMATE CHANGE AND RENEWABLE ENERGY PRACTICE GROUP

The business case for the development of renewable energy projects, from biodiesel and ethanol to wind, solar, and distributed generation, is more compelling than ever as tax and regulatory incentives combine to attract investments. Emerging issues in environmental law and increasingly recognized principles of corporate social responsibility are encouraging public companies to voluntarily reduce greenhouse gas emissions, install clean energy alternatives, and invest overseas in projects under the Kyoto Protocol to respond to climate change concerns.